Delhi HC seeks Centre's stand on plea for disclosure of statistical information on e-surveillance

The Delhi High Court on Tuesday sought the stand of the central government on a petition concerning the disclosure of statistical information on state-sponsored electronic surveillance under the Right to Information Act.

Justice Yashwant Varma directed that the central government counsel obtain instructions on the plea by Apar Gupta challenging a Central Information Commission (CIC) order which accepted the “belated and unsubstantiated claim” of the authorities that the data sought had been destroyed and accordingly did not exist.

Senior advocate Trideep Pais, appearing for Gupta, submitted that he was not seeking the “substantial orders” issued for interception or their details, and what was sought was the data with respect to the permission granted to intercept, which is not destroyed under the legal framework.

“The fruits of interception may be destroyed but the fact that interception was done would survive,” he stated.

In the absence of any counsel appearing for the respondents, the judge listed the petition -– which also seeks a direction for the disclosure of the data — for further hearing on April 28.

The petitioner — a lawyer, co-founder, and Executive Director of the Internet Freedom Foundation (IFF), had in December 2018, filed six applications under the Right to Information Act seeking details of the number of orders passed under Section 69 of the Information Technology Act between January 2016 to December 2018 granting permission for electronic surveillance.

It was the petitioner’s grievance that while deciding his second appeal under the RTI regime, the CIC proceeded upon an erroneous understanding of the law and failed to sufficiently examine the “bald” and “belated” averment of the Ministry of Home Affairs that the data sought by him was no longer available with it as it had been destroyed.

In the petition filed through lawyer Vrinda Bhandari, the petitioner informed that as per the CPIO’s stand before the CIC, the Ministry of Home Affairs did not maintain any statistical information/data related to lawful interception & monitoring but did not cite any statutory provision or even an internal policy/SOP that supports its stand that such statistical information is not maintained “No personally identifiable information was sought in the RTI queries. The Petitioner did not ask for details of specific interception orders or the identity or profile of the targeted individuals but instead sought anonymised and aggregate figures to understand the extent of state surveillance. Further, the queries relate to data that the Respondents ought to have in their possession since only the MHA is empowered to issue such orders,” the petition said.

The petition informed that in 2019, the CPIO had disposed of the petitioner’s requests for information, stating that the disclosure of information related to lawful interception/phone tapping/monitor or decrypt, is exempted under section 8(1)(a), 8(1)(g) and 8(1)(h) of the RTI Act and the same was subsequently not interfered with by the First Appellate Authority.

The petition also seeks guidelines and directions to prevent the destruction of information sought in RTI proceedings on account of the absence of rules or practices on weeding out of documents during the pendency of RTI proceedings.

In December last year, the court had asked the CIC to decide the petitioner’s appeal within eight weeks.